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Tuesday, July 16, 2013

Ind. Decisions - 7th Circuit decides one Indiana case today

In Hoosier Env. Council v. U.S. Army Corps of Engineers (SD Ind., McKinney), a 21-page opinion, Judge Posner writes:

This appeal requires us to consider the scope of the duty imposed on the Army Corps of Engineers by section 404 of the Clean Water Act, 33 U.S.C. § 1344, and its implementing regulations, to protect wetlands that contain or are covered by waters of the United States (and so are within federal jurisdiction) from environmental degradation by—in this case—the construction of a highway. * * *

[p. 4 contains a color map of alternative routes for I-69 from Indianapolis to Evansville]

Environmentalists opposed building a highway on the direct route on the ground that it would destroy wetlands, disrupt forests, and also disrupt “karst” ecosystems, unusual landscapes permeated by caves and other formations that provide rich habitats for wildlife, including such endangered and threatened species as the Indiana bat (endangered) and the bald eagle (threatened). See U.S. Fish & Wildlife Service Midwest Region, “Karst Ecosystems,” www.fws.gov/midwest/ecosystemconservation/karst.html (visited July 1, 2013). Most of the environmental concerns have been resolved, however; this case is concerned just with the filling of wetlands and of stream crossings. Filling stream crossings means placing gravel, rock, or dirt in a stream in order to support a road that bridges the stream or even blocks it, in which event however a culvert can be built in order to conduct the stream under the road. The Clean Water Act requires a permit to fill streams that are waters of the United States—that is, that are within federal jurisdiction, as the waters affected by the highway are. The permit granted by the Corps allows six streams in section 3 to be filled where the highway crosses them, in addition to permitting the destruction of wetlands. The two types of action—destroying wetlands and filling streams—are the actions challenged as violations of the Clean Water Act. To simplify exposition, we’ll ignore the streams.

The plaintiffs advocate, in lieu of the new highway, simply upgrading to federal interstate highway standards the 88-mile stretch of Route 41 from Terre Haute to Evansville. That would bring the entire Indianapolis-Evansville route up to those standards. The environmental impact would be slight because all that would be involved would be upgrading an existing highway that occupies only 57 percent (88/155 miles) of the indirect route. This suggested alternative to the new highway would also be $1 billion cheaper ($1 billion versus $2 billion).

The federal and state highway authorities filed, as they were required to do, Environmental Impact Statements, which concluded that building a new interstate highway on the direct route was preferable to upgrading the indirect route. * * *

The plaintiffs argue neither that the project as a whole is contrary to the public interest nor that it was sectioned in order to prevent consideration of its total environmental harms (improper “segmentation,” discussed earlier). They may be playing a delay game: make the Corps do a public interest analysis from the ground up (along with an all-atonce six-section permit analysis) in the hope that at least until the analysis is completed there will be no further construction, so that until then the highway will end at the northernmost tip of section 3—making it a road to nowhere. AFFIRMED.

Posted by Marcia Oddi on July 16, 2013 11:42 AM
Posted to Ind. (7th Cir.) Decisions